Behaving ethically

I’ve not been very active lately as I had surgery a few
weeks ago and haven’t been able to do much.
Even now, I’m staying in a hotel (Premier Inn, because criminal law is
very glamorous) by the court because I’m not ready to travel all the way to
court two-days running. I’ve been
writing a lot of blog posts but haven’t posted any for the simple reason that
they are pretty crap – even worse than my usual outpourings. The injury also appears to have damaged my memory. I've just looked at the last post, which is utter rubbish and one that I have absolutely no memory of putting on this blog!

Anyway, today I was back in court for the first time in a
month or so. I met a prosecutor who’s
ability to lose papers is simply outstanding – better than me and I’ve managed
to misplace large stacks of paperwork in under 10-seconds! This chap gave me my copy of the papers and
then promptly lost his own set. I let
him read mine to open the facts then took them back. He had no list of previous convictions to
refer to and had managed to lose the copy intended for the court.

He hopefully suggested that I could tell the court about my
client’s offending behaviour. Even the
judge laughed at that suggestion. I wasn’t
about to do the prosecutors job for him and I politely told the judge that I
wouldn’t help out. Judge accepted my
position before the words had left my lips.

Outside court another solicitor asked whether I could
actually refuse to assist the court given that a defence solicitor has a duty
to the court. I was a little surprised
by the question since he’d just sat and watched me do it, so clearly I could do
it. I realised that he was more
concerned with resolving the ethical dilemma created by my refusal to assist
than my actual ability to say “no” to a judge.
I explained my point of view thus: if he had a trial looming and took
unhelpful witness statements from witnesses he would not be under an obligation
to assist the court and undermine his client’s case by revealing those witness
statements. On the same basis, why
should I do the prosecutor’s job by proving for him that my client has previous
convictions?

I know that this will not be a popular stand-point for some
people who find it difficult to understand that defence lawyers exist to defend
not to prove things against their own clients, but there it is. I always ask people to imagine how they would
feel if they employed a solicitor and he acted against their interests. For example, if you were selling a house and
your solicitor revealed some information that undermined your position and
caused your buyer to reduce their offer.
You wouldn’t be happy about that would you? So, why should somebody accused of a criminal
offence be happy if their lawyer actively stands up to prove unhelpful points
against them?

Clearly there is a line to be drawn and, I think it is
reasonable to say that I went close to the line today but I am happy that I did
not and have never crossed the line of what is proper. The question for me in this case was how to
balance my duty to the court and to my client, both must be considered and neither
should be preferred over the other. So, I
cannot breach my duty to the court to help out a client and at the same time I
cannot breach my duty to the client to assist the court. By refusing to prove a point against my
client, I am not assisting the court but equally I am not lying to the judge or
preventing the prosecution from doing their own job properly and putting that
evidence before the court. I thus act in
my client’s best interests and I do nothing contrary to my duty to the court. I have balanced my duty to court and client.

What alarms me is the number of advocates I see who believe
that they have an unrestricted duty to tell the court pretty much everything no
matter how harmful it is to their clients’ interests.

At Bar School, professional ethics are supposedly tested
throughout the course and every assessment has a minor ethical pitfall for
students to avoid. I also enjoyed a
weekend of studying solicitors ethics when I transferred, most of which is
focused on what to do when you act for both the buyer and seller in a property
transaction. I’d like to see training
colleges for both solicitors and barristers pose more challenging ethical
conundrums that require students to really focus on their duties to people
other than their own client and the conflict that can arise between the two.

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Comments

I agree, it is a fundamental tenet of the law that a defendant has to be proven guilty, so the onus is on the prosecution. I hope you get well soon! I really enjoy reading you blog posts, so thank you for writing them!

One should not mislead the Court, but given (in my experience) the level of incompetence displayed by the PPS representatives (here in NI at least) in the Magistrates Courts, I feel I would actually be doing the Court, and society, a disservice by assisting and allowing them to paper over the cracks in their generally unprepared presentation of cases.

What offends is this provision of justice on the cheap, and the attempt to pretend otherwise.

I've got to say that personally, the defence has become more and more about getting close to 'that' line in my local courts and even stepping over it. I had the 'pleasure' of watching a defence stand up and lie for 5 minutes last week as the client turned to me and said 'I don't know where he made that up from but it made me sound good, I wanted to go guilty, I told him I did it' How about the court being about the facts and the truth? Or has that dream long gone?

You are so right. Now with the advent of electronic prosecution files, quite often the only copy of the defendants pre cons are those that the defence have. Will I hand them up to the bench? Not on your life. Bench much miffed . When I explain I do not prosecute I realise that I have clearly grown another head overnight from the way that all in court look at me. Hey ho. Onwards and downwards

What if the bench insist on adjourning everytime until they have the pre cons? Even giving the CPS 5 mins to phone the office. If you know they are not going to sentence without that bit of info, wouldn't it just be easier to pass it up?

Giving in might well make my own life easy, but that doesn't make it ethically right! In fact, putting my own interest first (as in less hearing means less costs for me) would actively breach my duty to the client.

In reality, I've never come across a bench willing to waste the courts time simply because the CPS didn't do their job properly. Certainly, the CPS advocate can go and make a call but that rarely results in the antecedents being produced.

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